PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-1525

CHRISTOPHER TORRETTI; HONEY TORRETTI,

as parents & natural guardians of Christopher J. Torretti,

a minor, and in their own right,

Appellants

v.

MAIN LINE HOSPITALS, INC., d/b/a PAOLI

MEMORIAL HOSPITAL;

ANDREW GERSON, M.D.;

MAIN LINE PERINATAL ASSOCIATES;

MARK FINNEGAN, M.D.;

PATRICIA MCCONNELL, M.D.;

MCCONNELL, PEDEN, BELDEN & ASSOCIATES;

LANKENAU HOSPITAL

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 06-cv-03003)

District Judge: Honorable Juan R. Sanchez

2

Argued January 28, 2009

Before: SCIRICA, Chief Judge, AMBRO,

and SMITH, Circuit Judges

(Opinion filed September 2, 2009)

Barbara R. Axelrod, Esquire (Argued)

James E. Beasley, Jr., Esquire

Dion G. Rassias, Esquire

The Beasley Firm

1125 Walnut Street

Philadelphia, PA 19107-0000

Counsel for Appellant

Daniel F. Ryan, III, Esquire

O’Brien & Ryan

2250 Hickory Road, Suite 300

Plymouth Meeting, PA 19462-0000

Peter J. Hoffman, Esquire (Argued)

Eckert, Seamans, Cherin & Mellott

50 South 16th Street

Two Liberty Place, 22nd Floor

Philadelphia, PA 19102-0000

Counsel for Appellees

3

OPINION OF THE COURT

AMBRO, Circuit Judge

This is our first opportunity to confront the Emergency

Medical Treatment and Active Labor Act (“EMTALA” or the

“Act”). 42 U.S.C. § 1395dd, et seq. Among other things, the

Act forbids hospitals from refusing to treat individuals with

emergency conditions, a practice often referred to as “patient

dumping.”

Appellants Christopher and Honey Torretti’s son,

Christopher, was born with severe brain damage after Mrs.

Torretti’s high-risk pregnancy went awry. On the morning of

the birth, Mrs. Torretti went to her routine outpatient fetal

monitoring appointment at a perinatal facility. The attending

medical personnel at the facility directed her to her primary

hospital for extended perinatal monitoring. She gave birth to

Christopher shortly after arriving at the hospital. The Torrettis

sued the hospitals and doctors involved under EMTALA, as

well as state statutory and common-law claims. This appeal

tests the boundaries of EMTALA, which is not a federal

malpractice statute. Given these circumstances, relief for

Christopher Torretti’s traumatic brain injuries may be available

in other forms, but is not provided under EMTALA. Thus, we

The District Court had subject matter jurisdiction over this1

EMTALA action pursuant to 42 U.S.C. § 1395dd, et seq., and

supplemental jurisdiction over the state claims pursuant to 28

U.S.C. § 1367. We have appellate jurisdiction under 28 U.S.C.

§ 1291.

4

affirm the District Court’s grant of summary judgment.1

I. Background

This case, like most cases brought under EMTALA, is

tragic. This was Mrs. Torretti’s second pregnancy. Her first

child was born healthy. Both pregnancies were high-risk

because she is an insulin-dependent diabetic. Her primary

obstetrician was Dr. Patricia McConnell, a member of the Peden

Group, an obstetrics practice group based out of Lankenau

Hospital (“Lankenau”). Lankenau is part of the Main Line

Health system and located in Wynnewood, Pennsylvania.

Because of Mrs. Torretti’s diabetic condition (which can

present complications during a pregnancy), Dr. McConnell

referred her to the Paoli Hospital Perinatal Testing Center

(“Paoli”), located in Paoli, Pennsylvania, for monitoring

throughout both pregnancies. Paoli is a center for fetal

monitoring and consultation only, and is located in a medical

building adjacent to Paoli Hospital. It is also owned by Main

Line Health. The two hospitals are approximately twenty miles

apart.

5

In Mrs. Torretti’s third trimester, she began to have

complications, primarily involving premature contractions.

During this period, the Peden Group increased Mrs. Torretti’s

monitoring appointments at Paoli to twice per week from once

per month. The Peden Group also monitored her as an

outpatient at Lankenau on one occasion in mid-April 2005. Two

weeks later, when she went to Paoli for routine monitoring on

April 30, the Paoli medical staff detected that she was

experiencing pre-term labor and directed her to Lankenau where

she was hospitalized for three days. On that occasion, she drove

herself from Paoli to Lankenau.

Near the end of Mrs. Torretti’s pregnancy, in her 34th

week, she had a routine monitoring appointment scheduled at

Paoli on Monday, May 23. Two days before the appointment,

she called Dr. McConnell twice. First, she complained of

contractions. Dr. McConnell told her to put her feet up and

relax. The second time Mrs. Torretti called, the contractions had

lessened, but she explained that she was very uncomfortable

because of her large size and had noticed a decrease in fetal

movement. She asked about the possibility of receiving a

therapeutic amniocentesis, a treatment to reduce her discomfort

by removing some of the excess amniotic fluid. Dr. McConnell

advised her to drink a glass of ice water to try and stir the baby;

thereafter, for whatever reason, Mrs. Torretti detected increased

movement. The doctor also told her that she could come to

Lankenau if she preferred, but that nothing could be done until

Monday. Mrs. Torretti chose not to go the hospital that

See App. 97 (Question: “Did you feel your condition was2

emergent on the 21st?” Mrs. Torretti’s answer: “No.”).

A non-stress test is a non-invasive test that measures fetal3

heart rate and contractions. Dr. Andrew Gerson, a

perinatologist, explained that the test can last anywhere from 20

minutes to more than two hours, depending on the person.

See App. 101a (Question: “Did you feel your condition was4

emergent that day [at Paoli]?” Mrs. Torretti’s answer: “No.”).

6

weekend and did not believe that her condition was emergent.2

On May 23, the Torrettis drove to Paoli for the

appointment, which included a routine ultrasound and a fetal

non-stress test. When Mrs. Torretti arrived at Paoli, she was3

feeling general discomfort, primarily because of the strain on

her back from the large size of her abdomen. She was not

alarmed about her condition and did not feel that she was in an

emergent state. She told Dr. Andrew Gerson, a perinatologoist4

on Paoli’s staff, about her conversation with Dr. McConnell

over the weekend—that she was having a great deal of

discomfort mainly due to her large size and had noticed a

decrease in fetal movement, but that there was still some

movement.

Dr. Gerson sat Mrs. Torretti in a chair and began the non-

stress test. Over a 28-minute period, the test did not show

expected fetal heart rate variability—normal accelerations and

Dr. Gerson stated that “one of the other concerns was [that5

Mrs. Torretti] be evaluated for her own sugar status and diabetes

status, which, again, was one of the factors that made me realize

that I thought she was going to [a] need more prolonged period

of monitoring than what we could provide for her.”

7

decelerations. Lack of variability in a non-stress test could be

explained by a normal variant, such as a prolonged sleep cycle,

or could be the sign of a problem. About the same time Mrs.

Torretti began the non-stress test, her contractions returned. She

indicated the “pain was so bad” that she was “grasping either the

arm of the chair or both arms of the chair at once, and either

almost grunting or to a degree yelling.” The non-stress test

indicated that she had 16 contractions in the 28 minutes of fetal

monitoring—her contractions lasted approximately 50 to 70

seconds and were 1½ to 2½ minutes apart.

Dr. Gerson was aware of Mrs. Torretti’s diabetic

condition. He noted in her medical documents that her

abdominal circumference was large—“off the charts.” The fetus

weighed approximately eleven pounds. Also, the ultrasound test

indicated that she had excess amniotic fluid, but that the fetus

“was moving its limbs and body.”

Based on these preliminary test results and Mrs.

Torretti’s diabetic condition, Dr. Gerson terminated the non-

stress test and sent her to Lankenau for longer-term monitoring

of the baby. In directing Mrs. Torretti to Lankenau, he also5

Dr. McConnell confirmed this view in testifying that Dr.6

Gerson told her that Mrs. Torretti would need prolonged

monitoring, but that he did not anticipate a delivery that day.

8

consulted with her regular doctor, Dr. McConnell, by telephone.

Dr. Gerson testified that this plan appeared to be “perfectly safe”

based on the “best information we had.” He further testified

that, even though she was having contractions, which had been

commonplace throughout her third trimester, “delivery wasn’t

necessarily going to be imminent or need to be imminent and [

] it was appropriate for her to go to Lankenau Hospital.” The6

nurse assisting Dr. Gerson commented to Mrs. Torretti that she

believed Mrs. Torretti might deliver the baby sometime that day,

but gave no indication of an emergency or imminency.

Mrs. Torretti testified that, while at Paoli, nothing in the

statements or demeanor of anyone on Paoli’s staff, including Dr.

Gerson, indicated to her that her condition was emergent. For

example, Mrs. Torretti stated that “[t]here was no [ ] urgency,

though, as far as I was concerned. [The nurse] seemed pretty

calm, and that’s usually a pretty good indicator” because “I

could usually read [the nurse] pretty well, I had known her since

I had been pregnant with my first child.” In addition, when Dr.

Gerson discontinued the monitoring and sent her to Lankenau

for prolonged monitoring, Mr. Torretti asked whether it was an

emergency and if they should go in an ambulance. Dr. Gerson

replied that it was not that urgent and that an ambulance was not

necessary. Nonetheless, he requested that they go directly to

9

Lankenau. En route to Lankenau, however, they stopped at their

home. With the stop, the 20-mile trip took them approximately

45 minutes door-to-door.

As is customary, Dr. Gerson sent an explanatory letter to

the Lankenau medical personnel along with the Torrettis. When

Mrs. Torretti arrived, she had to wait approximately 15 to 20

minutes for a room. She stated that when she was first

connected to the monitor, her condition seemed to be about the

same as it had been at Paoli, but then “it worsened very

quickly.” Shortly thereafter, another doctor with the Peden

Group checked on her. When he looked at the preliminary

results, he exclaimed “oh shit!” The doctors immediately rushed

Mrs. Torretti into surgery and she gave birth via caesarean

section. The baby, Christopher Torretti, was born with severe

brain damage.

Defendants moved for summary judgment on the

EMTALA claim. The District Court ruled that the Torrettis did

not offer sufficient evidence to raise a reasonable inference that

defendants, specifically Dr. Gerson, knew Mrs. Torretti

presented a medical emergency, and thus failed to sustain their

burden under EMTALA. Torretti v. Paoli Mem. Hosp., No. 06-

3003, 2008 WL 268066, at *1 (E.D. Pa. Jan. 29, 2008).

Accordingly, it granted the motion for summary judgment,

dismissing the only federal claim. It also declined to exercise

supplemental jurisdiction over the Torrettis’ remaining state

claims.

The statute states in pertinent part: 7

(a) Medical screening requirement

10

II. Standard of Review

When the District Court grants a motion for summary

judgment, our review is plenary. See Elsmere Park Club, L.P.

v. Town of Elsmere, 542 F.3d 412, 416 (3d Cir. 2008) (citation

omitted). Summary judgment is appropriate when no genuine

issues of material fact exist and the moving party is entitled to

judgment as a matter of law. See Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986). “We resolve all factual doubts and

draw all reasonable inferences in favor of [ ] the nonmoving

party.” See DL Res., Inc. v. FirstEnergy Solutions Corp., 506

F.3d 209, 216 (3d Cir. 2007) (citation omitted). We may affirm

or vacate the District Court’s judgment on any grounds

supported by the record. Gorum v. Sessoms, 561 F.3d 179, 184

(3d Cir. 2009) (citation omitted).

III. EMTALA Background

EMTALA requires hospitals to give certain types of

medical care to individuals presented for emergency treatment:

(a) appropriate medical screening, (b) stabilization of known

emergency medical conditions and labor, and (c) restrictions on

transfer of unstabilized individuals to outside hospital facilities.

42 U.S.C. § 1395dd(a)–(c) ; see Urban v. King, 43 F.3d 523,7

In the case of a hospital that has a hospital

emergency department, if any individual (whether

or not eligible for benefits under this subchapter)

comes to the emergency department and a request

is made on the individual's behalf for examination

or treatment for a medical condition, the hospital

must provide for an appropriate medical screening

examination within the capability of the hospital's

emergency department, including ancillary

services routinely available to the emergency

department, to determine whether or not an

emergency medical condition (within the meaning

of subsection (e)(1) of this section) exists.

(b) Necessary stabilizing treatment for emergency

medical conditions and labor

( 1 ) I n g e n e r a l [ : ] I f a n y

individual . . . comes to a hospital and the hospital

determines that the individual has an emergency

medical condition, the hospital must provide

either—

(A) within the staff and facilities

available at the hospital, for such

further medical examination and

such treatment as may be required

to stabilize the medical condition,

or

(B) for transfer of the individual to

another medical facility in

accordance with subsection (c) of

11

this section.

. . . .

(c) Restricting transfers until individual stabilized

(1) Rule[:] If an individual at a hospital has

an emergency medical condition which has not

been stabilized (within the meaning of subsection

(e)(3)(B) of this section), the hospital may not

transfer the individual unless . . . . [considerations

not applicable to this case.]

12

525 (10th Cir. 1994) (stating that a hospital has two primary

obligations under EMTALA: (1) if an individual arrives at an

emergency room, the hospital must provide appropriate medical

screening to determine whether an emergency medical condition

exists; and (2) if the hospital determines an individual has an

emergency medical condition that has not been stabilized, it may

not transfer the patient unless certain conditions are met).

Congress enacted EMTALA in the mid-1980s based on

concerns that, due to economic constraints, hospitals either were

refusing to treat certain emergency room patients or transferring

them to other institutions. See 68 F.R. 53,222, 53,223 (Sept. 9,

2003); see also H.R. Rep. No. 99-241, pt.3, at 27 (July 31,

1985), reprinted in 1986 U.S.C.C.A.N. 579, 605 (indicating that

Congress was “greatly concerned about the increasing number

of reports that hospital emergency rooms are refusing to accept

or treat patients with emergency conditions if the patient does

not have medical insurance”). As noted above, this practice is

Hospitals that voluntarily participate in the Medicare or8

Medicaid programs and have effective provider agreements

must comply with EMTALA. In re Univ. Med. Ctr., 973 F.2d

1065, 1083 (3d Cir. 1992). When medical personnel working

for a hospital violate EMTALA, that hospital is subject to

liability for those violations “[b]ecause hospitals can act and

know things only vicariously through individuals.” Burditt v.

HHS, 934 F.2d 1362, 1374 (5th Cir. 1991) (internal citation

omitted).

13

known as “patient dumping.” Power v. Arlington Hosp. Ass’n,

42 F.3d 851, 856 (4th Cir. 1994). EMTALA requires hospitals

to provide medical screening and stabilizing treatment to

individuals seeking emergency care in a nondiscriminatory

manner. Although Congress was concerned that the indigent8

and uninsured tended to be the primary victims of patient

dumping, EMTALA is not limited to these individuals. See 42

U.S.C. § 1395dd; see also Roberts v. Galen of Virginia, Inc.,

525 U.S. 249, 252 (1999) (holding that EMTALA does not

require a plaintiff to show “that the hospital’s inappropriate

stabilization resulted from an improper motive such as one

involving the indigency, race, or sex of the patient”).

There is no general common-law duty for hospitals to

accept and treat all individuals. Under EMTALA, however, any

individual who suffers personal harm as a direct result of a

hospital’s violation of the statute may bring a private civil action

for damages. 42 U.S.C. § 1395dd(d). While an EMTALA

Titled “Special responsibilities of Medicare hospitals in9

emergency cases.”

Titled “Medicare Program; Clarifying Policies Related to10

the Responsibilities of Medicare-Participating Hospitals in

Treating Individuals with Emergency Medical Conditions.”

14

action usually will be brought in conjunction with a state

statutory claim or common-law medical malpractice or

negligence action arising out of the same events, it does not

create a federal cause of action for malpractice. See, e.g.,

Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132, 1137

(8th Cir. 1996); Brooks v. Md. Gen. Hosp., Inc., 996 F.2d 708,

710, 713 (4th Cir. 1993) (stating that EMTALA “does not create

liability for malpractice based upon breach of national or

community standard of care”). Liability is determined

independently of whether any deficiencies in the screening or

treatment provided by the hospital may be actionable as

negligence or malpractice, see Summers, 91 F.3d at 1137, as the

statute was aimed at disparate patient treatment.

IV. Outpatients Do Not Trigger EMTALA Coverage

In analyzing an EMTALA claim, the Act does not stand

alone. The Department of Health and Human Services’ Centers

for Medicare and Medicaid Services (CMS) promulgated a

Federal Regulation, 42 C.F.R. § 489.24(a)–(b), and Final Rule,9

68 F.R. 53,222 (Sept. 9, 2003), clarifying the reach of10

15

EMTALA. See Brian Kamoie, EMTALA: Dedicating an

Emergency Department Near You, 37 J. Health L. 41, at 55–56

(2004) (explaining that because of confusion in the

interpretation and application of EMTALA, CMS set up a

“Regulatory Reform Task Force” to recommend clarifications

to the statute). Generally, we defer to a government agency’s

administrative interpretation of a statute unless it is contrary to

clear congressional intent. See Chevron USA, Inc. v. Natural

Res. Defense Council, Inc., 467 U.S. 837, 843 & n.9, n.11

(1984) (noting that when an agency with the power to construe

a statute has provided a construction, we defer to that

interpretation if it is “permissible”); see also Mercy Home

Health v. Leavitt, 436 F.3d 370, 378 (3d Cir. 2006) (explaining

the Chevron deference test). “The court need not conclude that

the agency construction was the only one it permissibly could

have adopted to uphold the construction, or even the reading the

court would have reached if the question initially had arisen in

a judicial proceeding.” Chevron, 467 U.S. at 843 n.11. Where

Congress expressly delegates to an agency the power to construe

a statute, we review the agency’s interpretation under the

“arbitrary and capricious” standard; where the delegation is

implicit, the agency’s interpretation must be “reasonable.” Id.

at 843–44.

CMS has the congressional authority to promulgate rules

and regulations interpreting and implementing Medicare-related

statutes such as EMTALA. See generally 42 U.S.C. §§ 1302,

1395hh; 5 U.S.C. § 551, et seq. Among the 2003 clarifications,

Cf. Lopez-Soto v. Hawayek, 175 F.3d 170, 173–76 (1st Cir.11

1999) (explaining that subsections (a) (screening) and (b)

(stablilization) of EMTALA should be read in the disjunctive

because (a) uses the term “emergency department” and (b) uses

the term “hospital,” and concluding that transferring an infant

born in the maternity ward with an emergent condition to

another hospital with specialized care without stabilization

would qualify as a claim under EMTALA). We note that this

case came before CMS’s 2003 clarifying Regulation and Final

Rule. We do not attempt to speculate at how the First Circuit

16

the Regulation and Final Rule address where and when

EMTALA applies. CMS solicited public comments and took

into account a range of objections to the proposed Regulation,

providing a lengthy discussion responding to the comments and

its reasons for its interpretation in the Final Rule. The

Regulation was not raised by the parties or the District Court.

Nevertheless, it is instructive to answer the question before us:

whether Mrs. Torretti fits within EMTALA’s scope—a patient

antidumping statute. CMS has concluded that EMTALA does

not apply to patients (and outpatients), which interpretation

precludes the Torrettis’ EMTALA claim in the first instance

because Mrs. Torretti was an outpatient who came to Paoli for

a scheduled appointment.

Turning to the Regulation’s interpretation of the statute,

EMTALA’s requirements are triggered when an “individual

comes to the emergency department.” 42 C.F.R.11

Court of Appeals would view this question in light of the

revised Regulation, but in the Court’s analysis it noted that the

EMTALA “provisions create distinct obligations and apply to

different classes of individuals.” Id. at 175. We also note that

a “labor and delivery department,” where the baby in Lopez-Soto

was born and transferred from, is considered to be a “dedicated

emergency department” under the Regulation and Final Rule

and thus falls under EMTALA, whereas Paoli’s Perinatal

Testing Center is for outpatient fetal monitoring and consulting

only. See 68 F.R. at 53,229–30 (explaining that EMTALA

coverage applies to “labor and delivery departments” because

they “provide care for emergency medical conditions on an

urgent, nonappointment basis”).

As was the Lopez-Soto Court’s focus, CMS pointed out

that the nomenclature discrepancies in the statute have led to

confusion and the uneven application of EMTALA. See 68 F.R.

at 53,227–228; see also Kamoie, 37 J. Health L. at 46–47,

51–52. By focusing EMTALA obligations across methods of

classification, such as by distinguishing between hospital

patients and other individuals who come to the hospital, CMS

attempted to clarify the statute. See 68 F.R. at 53,224 (“We

proposed to clarify the extent to which EMTALA applies to

inpatients and outpatients. We believe these clarifications will

enhance understanding for hospitals as to what their obligations

are under EMTALA, so that they more clearly understand to

whom they are obligated under this provision of the statute, and

whose care will be governed by the Medicare hospital

[conditions of participation].”).

17

§ 489.24(a)(1). To parse out this clause, an12

The pertinent part of subsection (a) of the Regulation states:12

(a) Applicability of provisions of this section.

(1) In the case of a hospital that has an emergency

department, if an individual (whether or not

eligible for Medicare benefits and regardless of

ability to pay) “comes to the emergency

department,” as defined in paragraph (b) of this

section, the hospital must—

(i) Provide an appropriate medical screening

examination within the capability of the hospital’s

emergency department, including ancillary

services routinely available to the emergency

department, to determine whether or not an

emergency medical condition exists. The

examination must be conducted by an

individual(s) who is determined qualified by

hospital bylaws or rules and regulations and who

meets the requirements of § 482.55 of this chapter

concerning emergency services personnel and

direction; and

(ii) If an emergency medical condition is

determined to exist, provide any necessary

stabilizing treatment, as defined in paragraph (d)

of this section, or an appropriate transfer as

defined in paragraph (e) of this section. If the

hospital admits the individual as an inpatient for

further treatment, the hospital’s obligation under

this section ends, as specified in paragraph (d)(2)

18

of this section.

42 C.F.R. § 489.24(a).

“Outpatient means a person who has not been admitted as13

an inpatient but who is registered on the hospital or CAH

[critical access hospital] records as an outpatient and receives

services (rather than supplies alone) directly from the hospital or

CAH.” 42 C.F.R. § 410.2.

19

“individual” only “comes to the emergency department” if that

person is not already a “patient.” See id. § 489.24(b); see also

68 F.R. at 53,238 (explaining that because “outpatients” “are

patients of the hospital already, we believe it is inappropriate

that they be considered to have ‘come to the hospital’ for

purposes of EMTALA”). The Regulation defines “patient” for

our purposes as “[a]n individual who has begun to receive

outpatient services as part of an encounter, as defined in § 410.2

of this chapter, other than an encounter that the hospital is

obligated by this section to provide.” 42 C.F.R. § 489.24(b).13

CMS explains that EMTALA does not apply to

outpatients, even if during an outpatient encounter “they are

later found to have an emergency medical condition . . . [and]

are transported to the hospital’s dedicated emergency

department.” 68 F.R. at 53,240 (pertinent section titled

“Applicability of EMTALA: Individuals Present at an Area of

the Hospital’s Main Campus Other than the Dedicated

Emergency Department” that corresponds with 42 C.F.R.

The pertinent part of the CMS Final Rule states:14

EMTALA does not apply to any individual who,

before the individual presents to the hospital for

examination or treatment for an emergency

medical condition, has begun to receive outpatient

services as part of an encounter . . . . Such

individuals would be included under this policy,

regardless of whether or not they began the

nonemergency encounter in order to keep a

previously scheduled appointment or under orders

o f a p h ys i c i a n o r o t h e r m e d i c a l

practitioner. . . . [W]e believe it is inappropriate to

consider such individuals, who are hospital

outpatients who have protections under the

[Medicare Conditions of Participation], to have

“come to the hospital” for purposes of EMTALA

as well, even if they subsequently experience an

20

§ 489.24(b)); see also id. at 53,243, 53,247 (“[W]e

are . . . [a]dopting as final the proposed definition of

patient . . . to reflect the nonapplicability of EMTALA to an

individual who has begun to receive outpatient services at an

encounter at the hospital other than an encounter that the

hospital is obligated by EMTALA to provide.”). “These

individuals are considered patients of the hospital and are

protected by [Medicare’s Conditions of Participation] and

relevant State law,” as well as “under general rules of ethics

governing the medical profession.” Id. at 53,238–40 ; see also14

emergency medical condition.

We note, however, that EMTALA could be triggered in a15

circumstance where an individual comes to the hospital

requesting treatment for an emergent condition, despite having

a pre-scheduled appointment within the hospital for a related or

unrelated reason. See 68 F.R. at 53,241; id. at 53,237 (“[I]f [an]

individual [sent to a hospital for specific diagnostic tests] were

to tell the hospital staff at the laboratory or radiology department

that he or she needed emergency care, EMTALA would

apply.”). As we discussed above, that is not the situation here

and would require a different analysis. There is a narrow

exception where an individual need not request emergency care,

but Mrs. Torretti also does not fit under this exception, and we

do not discuss it in more detail.

21

Kamoie, 37 J. Health L. at 51–52.

The Torrettis argue that EMTALA is triggered because

Mrs. Torretti came to Paoli for “what was, from the inception,

a potential ‘emergency medical condition’” because “EMTALA

protects people who present ‘for what may be an emergency

medical condition.’” Appellants’ Supp. Br. at 2 (quoting 68 F.R.

53,222) (emphasis added). This is not supported in the record.

Mrs. Torretti came to Paoli for her scheduled bi-weekly

appointment involving routine monitoring of her high-risk

pregnancy and did not present as an emergency to the Paoli

medical staff. In fact, she testified that, because of her15

complications throughout her third trimester, she did not believe

22

she was in an emergent state until after she began the

monitoring at Lankenau and her condition quickly changed. Her

other actions and testimony, as well as the testimony of her

husband and the medical personnel, are consistent with this

view.

Contrary to the Torrettis’ contention on appeal, Mrs.

Torretti’s statements to Dr. Gerson near the beginning of the

appointment (describing her discomfort due to her large size and

her conversations with Dr. McConnell over the weekend) do not

amount to presenting an emergency. At any medical

appointment, we would expect medical personnel attending to

a patient to request pertinent medical information, and, in turn,

expect that a patient share such information concerning the

perceived state of her health, which is precisely what Mrs.

Torretti did in this case. This type of routine patient-doctor

dialogue does not transform a pre-scheduled medical

appointment into an emergent situation triggering EMTALA.

The Torrettis also imply that, regardless of whether Mrs.

Torretti was a “patient,” because she had a high-risk pregnancy,

each scheduled visit to Paoli during her pregnancy would

qualify as a presentment of an emergency medical condition to

trigger EMTALA coverage. Appellants’ Supp. Br. at 3 (“Mrs.

Torretti came to [Paoli] for what was, from the inception, a

potential ‘emergency medical condition.’ As the fetus of a

woman who has been an insulin-dependent diabetic since

infancy, her baby was at serious risk of stillbirth or fetal death.”)

23

(citation omitted). This is an unreasonable interpretation of the

Act that broadens its scope beyond Congress’s intent. To

illustrate this point, individuals in equivalent situations to Mrs.

Torretti would be hospital outpatients who have routinely

scheduled weekly or monthly appointments to receive dialysis

or chemotherapy for treatment of kidney disease and cancer,

respectively. We believe it is clear that Congress did not intend

EMTALA to cover these individuals every time they come to

the hospital for their appointments, even though they suffer from

serious medical conditions that risk becoming emergent.

Given this context, we believe CMS’s more restrictive

interpretation on this issue is consistent with EMTALA, and is

in accord with the Act’s intent. Congress passed EMTALA to

curb the problem of patient dumping by creating a statutory duty

for hospitals to examine and treat individuals who come to them

for emergency care. 42 U.S.C. § 1395dd. Accordingly, this

interpretation is entitled to Chevron deference. See Chevron,

467 U.S. at 843; see also Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 504 (1983) (noting agency

regulations interpreting a statute “will often suffice to clarify a

standard with an otherwise uncertain scope”).

One final note on this issue is that in supplemental

briefing the Torrettis point to a Ninth Circuit Court case,

Arlington v. Wong, 237 F.3d 1066, 1071–72 (9th Cir. 2001), and

argue that CMS has taken an “expansive approach” to the phrase

“comes to the emergency department,” which triggers

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EMTALA. Appellants’ Supp. Br. at 1. Arlington was issued

prior to the 2003 Final Rule and revised Regulation that clarified

the treatment of outpatients under the statute by revising the

definition of “patient,” which is the significant issue here. The

“expansive approach” to which the Arlington court refers

broadens the definition of the phrase “comes to the emergency

department” to include other parts of the hospital, such as

“hospital property-sidewalks,” which is not determinative in this

case. See Arlington, 237 F.3d 1071–72 (addressing whether

under EMTALA “hospitals must admit emergency patients who

are being transported to the hospital in non-hospital owned

ambulances,” and noting that “[t]he [R]egulation answers this

question”); see also 42 C.F.R. § 489.24(b) (explaining that if an

individual is not a “patient,” that individual “comes to the

emergency department” within the meaning of the statute under

four circumstances).

In this circumstance, the Torrettis will have to pursue

legal avenues other than EMTALA because the statute does not

apply here. Moreover, claims of negligence or malpractice more

accurately reflect the relief the Torrettis seek.

V. Summary Judgment

Although we have concluded that Mrs. Torretti’s

circumstances are not those contemplated by EMTALA

coverage, we would be remiss if we did not address the

substance of the claim for future guidance. The Torrettis

25

alleged a “stabilization” claim—that defendants violated

EMTALA because they did not stabilize her emergency

condition and inappropriately transferred her. Under this theory,

EMTALA requires that Mrs. Torretti (1) had “an emergency

medical condition; (2) the hospital actually knew of that

condition; [and] (3) the patient was not stabilized before being

transferred.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 883

(4th Cir. 1992). The District Court dismissed the claim on

summary judgment because the Torrettis could not show that

defendants had actual knowledge of an emergency medical

condition. “The Act does not hold hospitals accountable for

failing to stabilize conditions of which they are not aware, or

even conditions of which they should have been aware.”

Vickers v. Nash Gen. Hosp., Inc., 78 F.3d 139, 145 (4th Cir.

1996) (citing Baber, 977 F.2d at 883) (indicating that

“EMTALA would otherwise become coextensive with

malpractice claims for negligent treatment”).

As the District Court concluded, the requirement of

actual knowledge is the key to this issue. We adopt this mens

rea condition precedent, which conforms with all our sister

circuit courts of appeals that have addressed this issue under

EMTALA. See, e.g., Vickers, 78 F.3d at 141; Eberhardt v. City

of Los Angeles, 62 F.3d 1253, 1258 (9th Cir. 1995); Holcomb v.

Monahan, 30 F.3d 116, 117 (11th Cir. 1994); Gatewood v.

Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir.

1991); Cleland v. Bronson Health Care Group, Inc., 917 F.2d

266, 271 (6th Cir. 1990); see also 42 U.S.C. § 1395dd(b)(1).

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When we discussed EMTALA at the outset, we indicated that it

was not intended to create a federal malpractice statute or cover

cases of hospital negligence. Thus, the actual knowledge

element comports with Congress’s intent in passing the Act.

The District Court concluded that the Torrettis’ evidence

was not sufficient to raise a disputed issue, and we agree with

that conclusion. As we outlined above in the fact section, there

is no evidence that any of the hospital staff at Paoli, and

specifically Dr. Gerson, actually knew that Mrs. Torretti’s

condition was an emergency before directing her to Lankenau

for further monitoring. The medical personnel at Paoli knew her

pregnancy was high-risk because of her diabetic condition,

which was indicated in her medical charts and the Paoli testing

results from that day, and she had a recent history of treatment

for pre-term labor and contractions similar to those exhibited at

Paoli (and approximately three weeks prior to the May 23

appointment, medical personnel at Paoli sent her to Lankenau

for further monitoring). She arrived for a routine appointment

and did not present herself as an emergency patient, neither she

nor Dr. McConnell believed her situation was emergent over the

weekend preceding the Paoli appointment, she did not believe

her condition was emergent until after she arrived at Lankenau

and her condition changed quickly, Dr. Gerson did not indicate

that he believed her condition was emergent (e.g., before Mrs.

Torretti left Paoli, he expressly stated to the contrary when

asked about transporting her to Lankenau in an ambulance and

when he spoke to Dr. McConnell about further monitoring at

Mrs. Torretti’s testimony that, near the end of her16

ultrasound, she heard Dr. Gerson state that “it had a score of

two,” is not enough to raise a disputed issue of material fact.

She believed the number referred to her biophysical profile

score, though she did not state any reasons for this belief. That

profile measures the health of the baby using both an ultrasound

and a non-stress test. The corresponding score ranges from 0,

which is very problematic, to 10, which is the best score.

Dr. Gerson testified that he was not able to conduct a

formal biophysical profile, but that the ultrasound showed

both gross body movements and limb movements,

as well as [excess] fluid around the baby[, which]

allowed me to come to the conclusion that the

baby had a biophysical profile score of 6, which

is a profile score that allows one to draw a

conclusion that delivery wasn’t necessarily going

to be imminent or need to be imminent and that it

was appropriate for her to go to Lankenau.

This number is corroborated in Mrs. Torretti’s medical report,

27

Lankenau), none of the other hospital staff indicated her

condition was emergent (e.g., Mrs. Torretti’s testimony conveys

that the nurse at Paoli commented that Mrs. Torretti might

deliver the baby sometime that day, but did not suggest it was

imminent or the situation was an emergency), and the Torrettis’

expert report is unreliable to the extent that it opines on the

element of actual knowledge. One of the Torrettis’ experts,16

which states that the biophysical profile score is 6. It is also

consistent with Dr. Gerson’s actions in sending Mrs. Torretti to

Lankenau for further monitoring. Moreover, the letter Dr.

Gerson sent to Lankenau indicated that, based on her ultrasound,

“the placenta was found in the Posterior position and noted to be

grade 2.” This information is consistent with the statement Mrs.

Torretti overheard Dr. Gerson make during the ultrasound. As

the District Court concluded, Mrs. Torretti’s speculation alone,

without more, is insufficient to survive summary judgment.

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Dr. Steven A. Klein, a fetal medicine specialist, stated in his

undated first report that Dr. Gerson “should have urgently sent

her to the nearest OB facility (Paoli Hospital)” and “not to do so

was below the standard of care.” These statements opine only

on malpractice or negligence and not the actual knowledge

standard under EMTALA. Dr. Klein added in his second report,

attached to the opposition to summary judgment, that he

believed Dr. Gerson knew Mrs. Torretti’s condition was

emergent. He based this opinion on several facts contained in

his two reports about Mrs. Torretti’s condition while at Paoli.

One of those facts—that “[M]rs. Torretti complained of NO

fetal movements for 2 days”—is not supported in the record.

Mrs. Torretti testified that she complained of reduced, not

absent, fetal movements over the weekend prior to the Paoli

appointment, and was able to stir the baby when she called Dr.

McConnell the second time. Dr. McConnell testified to this as

well, and Mrs. Torretti’s medical report from Paoli indicates the

same. Thus, regardless how we view the ability of medical

29

experts to opine on the element of actual knowledge of another,

we need not answer that question because here Dr. Klein’s

reports are not sufficient to create a disputed issue of material

fact.

* * * * *

In this context, we affirm the District Court’s grant of

summary judgment.